Madaiah vs Assistant Commissioner, Ramanagaram and Others

This matter has been posted for being spoken to as on 2-7-1991, when the writ petition came to be dismissed, Sri Papanna was not heard. Therefore, acceding to his request, the order made on 2-7-1991 is recalled.

Today I have heard Sri Papanna, learned counsel for the petitioner and Sri Sidda Gangaiah, learned High Court Government Pleader for the State.

The salient features of the case arising out of the impugned orders Annexures C and D, the orders made by the Assistant Commissioner and the Deputy Commissioner respectively, disclose that by an order made on 28-10-1954, the competent authority applying the Karnataka Land Revenue Rules prevailing as on the date of the order, granted 2.00 acres of land in Sy. No. 66, Laxmipur village, Ramnagar Taluk, Bangalore District, in favour of one Venkataiah, son of Thimma Naika subject to certain conditions.

It is not in dispute that the granted land came to be sold in favour of Chikka Madaiah, late father of the petitioner by registered sale deed dated 19-12-1955 for valuable consideration. It is stated that eversince the sale of land, the petitioner has been in possession and enjoyment of the said land.

After coming into force of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (hereinafter called ''the Act'') suo motu action was taken under Section 5 of the Act by the Assistant Commissioner, Ramanagaram, initiating proceedings against the purchaser (the petitioner herein), and notifying both the parties, based upon a report of the Tahsildar concerned. The Assistant Commissioner having held an enquiry, provided opportunity to both the parties and passed the impugned order Annexure-C on 30-9-1982.

In the course of the impugned order Annexure-C, Assistant Commissioner held that the land came to be sold in favour of Chikka Madaiah, the late father of the petitioner, as stated above, hence the said sale was in contravention of the grant, inasmuch as there was a prohibition imposed under the law governing the grant of land that the grantee was prohibited from alienating the granted land for a period of 15 years. Thus he held that the alienation of granted land was void and that the grantee or persons claiming under him would be entitled for restoration of the granted land.

Aggrieved by this order of the Assistant Commissioner, the matter was taken up before the Deputy Commissioner in appeal. The learned Deputy Commissioner dismissing the appeal, upheld the conclusion of the Assistant Commissioner, when he has given certain reasons for doing so. It is seen by a perusal of Annexure-D the impugned order of the Deputy Commissioner in appeal that he rejected the two grounds urged in appeal, I will presently consider these grounds which are reiterated in the writ petition. The Deputy Commissioner having dismissed the appeal affirming the view taken by the Assistant Commissioner, the petitioner has approached this Court in this appeal under Articles 226 and 227 of the Constitution of India.

Sri Papanna, learned counsel for the petitioner took me through the impugned order Annexures-C and D and urged the following three points.

(1) "Late Venkatayya, the original grantee was not a member of Scheduled Caste. Therefore, the provisions of the Act are not attracted for the purpose of granting relief in his favour;

(2) The land in question was not a free grant. A sum of Rs. 175/- came to be imposed and recovered from the grantee by the competent authority. This would go to show that the land in question was sold for a value and this value must be construed as a market value and therefore Rule 43-G cannot be applied for the purpose of imposing any condition. In that view also the conclusion of both the authorities are bad;

(3) The petitioner having purchased the land in question in the year 1957 has been enjoying the said land for over 30 years. The law of adverse possession will come to play. In other words, since the petitioner has further claimed the title over the land by virtue of his right arising out of law of adverse possession, he cannot be evicted."

These are the points urged by the learned counsel for the petitioner in support of the writ petition.

Dealing with the first point that since the grantee Venkatayya was not a member of Scheduled Caste, the provisions of the Act 1978 cannot be applied etc. I must say that it is one without any force, inasmuch as it is seen by a perusal of the saguvali chit issued at Annexure-A that the applicant/grantee Venkataiah was the son of one Thimma Naika. No doubt, it is true that in Annexure-A it is not disclosed as to whether the applicant Venkataiah represented any community or caste belonging to Scheduled Caste or Scheduled Tribe. The Assistant Commissioner no doubt has not recorded a specific finding as to whether Venkataiah, the original grantee, was a member of Scheduled Caste or Scheduled Tribe. But the Deputy Commissioner no doubt, in appeal has observed that the grantee belonged to Scheduled Caste. But he has not given reasons for his findings in favour of the applicant because this was specific question raised by him in the appeal.

A Division Bench of this Court had an occasion to deal with a similar question in the case of Krishnappa S.V. and Others v State of Karnataka and Others ILR 1982(2) Kar. page 1310. Before I could refer to the ratio of the decision in Krishnappa''s case covering this matter, it is necessary to say a few words in this aspect.

It is not in dispute that Venkataiah the original grantee represented the community of Nayak. Again it is not in dispute that the community of Nayak in the area in which he was residing in those days came to be recognised as a caste coming within the depressed class as recognised by the erstwhile Mysore Government. Keeping this aspect in mind, now I refer to paragraph 64 of the Judgment in Krishnappa''s case. Their Lordships of the Division Bench referring to this very question held as follows:

"Sri K. Shivashankar Bhat, learned counsel for the petitioner in W.P. No. 7762 of 1980, contended that since clause (d) of Section 3 of the Act defines the term ''the Scheduled Castes and Scheduled Tribes'' as having the meanings respectively assigned to them under the Constitution, the provisions of the Act have no application to alienations of granted lands made prior to the commencement of the Constitution on 26th January, 1950."

This is exact contention reiterated by Sri Papanna in this case.

"Elaborating this contention, he submitted that the concept of the Scheduled Castes and the Scheduled Tribes came into existence only under the Constitution and that hence the Act could not have intended to invalidate alienations of lands that took place prior to 26th January, 1950." Answering this question, their Lordships ruled in paragraph 65 as follows:

"It is true that the terms ''the Scheduled Castes'' and ''the Scheduled Tribes'' occurring in the Act, have the meanings assigned to them in the Constitution. That does not mean that castes and tribes which are included in the list of Scheduled Castes and Scheduled Tribes under the Constitution, did not exist prior to the commencement of the Constitution. Most of those castes and tribes were known as Depressed Classes, Harijans, Tribal people and Girijans. If the Government had granted a land to any person belonging to a caste or a tribe which, after the advent of the Constitution, came to be included in the list of Scheduled Castes or the list of Scheduled Tribes, there is no reason why such land should not be regarded as coming within the ambit of the term ''granted lands'' as defined in clause (b) of Section 3. There is also no reason why the provisions of the Act should not apply to such lands. Thus, we have no hesitation in rejecting the contention of Shri Shivashankar Bhat, the alienations of lands granted prior to 26th January, 1950 cannot be invalidated under the Act nor can such lands be resumed."

In the reported Judgment of Sri. S.V. Krishnappa v State of Karnataka referred to above, Their Lordships were dealing with the case where the land came to be granted prior to the commencement of the Constitution whereas in the instant case land granted in the year 1954. Therefore, even applying the provisions of Scheduled Castes and Scheduled Tribes Order promulgated by the President of India on 28-10-1954 when the land was granted, the Constitution of India having come into existence, the community of ''Nayak'' came to be declared as Scheduled Tribe in the said order. No doubt, Entry 38, Part 6 Karnataka, the community ''Nayak'' came to be included within the Scheduled Tribe order of 1950 by the President of India. Subsequently, by an ordinance promulgated by the President of India, in exercise of the powers conferred under Article 123(1) of the Constitution, the Community Nayak or Naik also came to be included within the Scheduled Tribe Order. Therefore, the caste Nayaka as found in Entry 38 of Part VI of the Karnataka (Scheduled Tribe) Order, 1950 referred to above was very much there even earlier. In that view of the matter, the first contention fails.

Dealing with the second contention that the land in question was not granted free of cost, but on payment of market value, I hold that it is again untenable and unacceptable.

It is true that by a perusal of Annexure-A Saguvali chit produced, it is seen that on upset price of Rs. 115/- came to be imposed in respect of two acres of land granted to Venkatayya and Rs. 40/- towards Malki and again other charges Rs. 20/- in total Rs. 175/- came to be imposed and collected from the grantee. It is in this context Sri Papanna, learned counsel for the petitioner submits that this amount be taken as market value imposed by the competent authority and collected from the grantee. Therefore, either it is the market value or equivalent to market value as has been referred to under Rule 43-G of the Land Grant Rules. Therefore, it is contended that since the above sum of money having been paid by the grantee, it cannot be said to be a free grant.

I had the occasion to deal with this question in the case of Basappa v Special Deputy Commissioner, reported in 1991(2) Kar. L.J. 480: ILR 1991 Kar. page 1321, I had discussed in detail what are the context factors and salient features to be taken into consideration for the purpose of assessing as to what is the upset price or reduced upset price distinguishable from the actual market value or the value that would be equivalent to the market value of the land in a case like this. In paragraph 21 of the Judgment I have referred to the ruling in Smt. Sharadamma v Giriyaiah and Others, in Writ Petition No. 14384/1985 disposed on 21-11-1988. I have extracted paragraph 11 of the Judgment in that case in paragraph 21 of my Judgment in Basappa''s case. It is explained as hereunder:

"After coming into force of the Act, respondent-3 approached the Assistant Commissioner, respondent-2 herein, seeking relief under Sections 4 and 5 of the Act. The Assistant Commissioner having held an enquiry, by his order dated 25-4-1984, allowed the application of respondent-3 declaring that the alienation made in favour of the petitioner was null and void under Section 4 of the Act as it was made in contravention of the condition of the Act and thereby directing under Section 5 of the Act restoration of the possession of the land in favour of respondent-3."

In paragraph 24, I have considered the several aspects to reach a conclusion as to what exactly the market value in a case like this. In paragraph 30 I have held as follows:

"The authority that granted the land in question in favour of respondent-3 and imposed a sum of Rs. 50/- per acre as upset price did not make an attempt to ascertain its market value as nearly as it can be ascertained as provided under sub-rule (2) of Rule 43 of the Rules, because, if it did so, the upset price imposed in the case on hand would have been more than what has been levied and in such a case, there would not have been the prohibitory condition that the land shall not be alienated for a period of fifteen years. Secondly, if the competent authority had seen the situation, fertility and potential power of the land, the upset price would have been different. Unfortunately, Saguvali Chit or other records are silent about the view taken by the granting authority on this aspect. Therefore, the only presumption that can be drawn is that what is levied and collected is only a nominal sum and not the actual market value; therefore, the condition that the grantee shall not alienate the land for a period of 15 years is rightly attached to the grant"

In the instant case, a sum of Rs. 175/- came to be imposed and collected as upset price as against two acres of land. The land in question situates in Sy. No. 66 of Laxmipur, Ramnagar Taluk, Bangalore District. Referring to the situation, location fertility and the distance from the headquarters of Bangalore. I am of the opinion the amount of Rs. 175/- imposed and collected from the grantee cannot be said to be the market value or equivalent to the market value of the land in question. Therefore, following the ratio in Basappa''s case, I reject this contention also.

The last contention that the purchaser/petitioner has perfected his title over the land in question by virtue of law of adverse possession, as he has been enjoying the land from the date of the sale made in his favour in the year 1955 is again one without any force because of the ruling of the Supreme Court in Sunkara Rajyalakshmi v State of Karnataka, ILR 1987(3) Kar. 2076. The Supreme Court ruled that for the purpose of establishing a case of adverse possession the period of limitation is 30 years before the commencement of the Act and not 12 years. Therefore, taking into account the date 1-1-1979 when the Act came into force and the date of sale of the land in question on 18-12-1951 it is less than 30 years. Therefore, following the ruling of Supreme Court in Sunkara Rajyalakshmi''s case, it is not possible to accept the contention of Sri Papanna that the petitioner has perfected his title by virtue of law of adverse possession. Thus the last contention also fails.

In the result, the writ petition fails and is dismissed but without any order as to costs.